Mindful that the mission of the Department of Justice is largely to “enforce the law” and
“seek just punishment for those guilty of unlawful behavior,” we have made this
recommendation in a letter to Attorney General Eric H. Holder, Jr.: Appoint a special counsel to
investigate and prosecute felonies committed by and under the direction of the previous
administration. Among those felonies were homicide, war crimes including torture, and
conspiracy against rights (USC Title 18, Sec. 241).

Prisoners who were beaten or tortured to death or simply executed by U.S. agents,
servicemen, or contractors numbered conservatively in the hundreds. Estimates soar as high as a
million if you count the Iraqis, Afghans, and Pakistanis killed as a result of aggressive wars —
undeclared by Congress — that President George W. Bush commenced in what the Nuremberg
Tribunal would classify among “crimes against peace.”

In an infamous example of criminal homicide, GIs in Afghanistanchained two young
civilian men to a ceiling in 2002 and over several days beat and kicked them to death. One of
them was a taxi driver aged 22, arrested merely because he happened to be driving past a base
that had been a rocket target. The Army blamed natural causes for the deaths before The New
York Times exposed the case in 2005 The top sentences for the killers were a few months’
lockup.

Arguably the higher-ups who set the standards and gave the orders bear the main
responsibility for such barbarity. But can anyone honestly claim he didn’t know he did anything
wrong when he beat or tortured helpless prisoners — at times to death?

Early in the Iraq war, the Times reported that invaders fired on civilian protesters, killing
15 and wounding about 75. British media reported admissions by GIs in Iraq that they slew Iraqi
prisoners, left wounded Iraqi fighters to die, or even shot the wounded. The reports described
slayings of men, women, and even children suspected of being anti-invader. U.S. and British
press exposed repeated shooting of civilians in cars at roadblocks. The Marine Corps initially
blamed its Haditha massacre on insurgents.

Among violated constitutional rights were freedom from unreasonable searches and
seizures under the Fourth Amendment, breached by mass spying on communications; the right to
due process of law under the Sixth Amendment; and protection against cruel and unusual
punishment under the Eighth Amendment. Multiple rights were denied Jose Padilla, an
American imprisoned by Bush for 3 1/2 years without charges and now serving a 17-year
sentence for conspiring to aid terrorists abroad.

Conspiring to torture

An agreement (i.e. conspiracy) to inflict physical and mental pain on prisoners, as reported
by ABC News in April 2008, came out of meetings held some six years ago with George W.
Bush’s approval. Various methods of brutality were decided by Condoleezza Rice, national
security adviser, who presided, Vice-President Dick Cheney, Secretary of Defense Donald
Rumsfeld, Attorney General John Ashcroft, and Secretary of State Colin Powell.

Lawyers had drawn up pseudo-legal principles for circumventing the laws against torture
by redefining it. For one thing, it would be called “enhanced interrogation.” An August 2002
memo from the Department of Justice’s Office of Legal Counsel authorized the use of 10
methods against Abu Zubaida, an Al-Qaeda man captured in Pakistan five months earlier. The
memo was signed by Jay S. Bybee, then an assistant attorney general, now a judge of the U.S.
Court of Appeals for the Ninth Circuit, in San Francisco. Waterboarding, or near drowning, a
method from the Spanish inquisition (which Attorney General Holder has called torture), was
imposed on Zubaida 83 times that month. Ex-intelligence officers told The Washington Post he
provided little useful information.

As members of the executive branch, the cabinet and legal officers knew or should have
known that torture or inhumane treatment of prisoners, regardless of its label, was prohibited by
two U.S. Code
sections (Title 18, Secs. 2340 and 2441) and three treaties, one of which
dated back more than half a century.

The 1949 Geneva Conventions prohibit any inhumane treatment, physical or mental, of
military or civilian war detainees. Torture or “cruel, inhuman, or degrading treatment or
punishment” is banned also by the International Covenant on Civil and Political Rights,
approved by the U.S. in 1992. And the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, a U.S. treaty since 1994, requires penalties for
violations, forbids sending a person abroad to be tortured, and says: “No exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal political instability
or any other public emergency may be invoked as a justification for torture.”

Yet Bush, Cheney et al. have invoked the wars that they started as justification for what
amounts to torture, claiming that it was the only way to get valuable information in the “war
against terrorism.”

Torturing “in good faith”

Now a report of the Senate Armed Services Committee reveals that intelligence and
military officials were preparing the torture program — even before Bush’s Department of
Justice okayed it — to justify the invasion of Iraq by fabricating a link between Saddam Hussein
and the 9/11 attacks. The Bush team pressured interrogators at Guantanamo to produce ties
between Iraq and Al-Qaeda.

The methods, including shackling, stressful positions, sleep deprivation, nudity, sexual
humiliation, hitting, and throwing against walls, were adapted from the military program SERE
(Survival, Evasion, Resistance, Escape) to train servicemen to withstand torturous questioning in
case of capture. Soviet and Chinese Communists had used such methods to extract false
confessions from prisoners.

The Senate report says the military’s Joint Personnel Recovery Agency, which ran SERE,
referred to those methods as “torture” in a document sent to the Pentagon’s chief lawyer in July
2002. The agency warned against their use by the U.S. because it would produce “unreliable
information” and “could be used by our adversaries as justification for the torture of U.S.
personnel.”

Another agency looking askance at the torture program was the Federal Bureau of
Investigation. Knowing that information so elicited would be unreliable and inadmissible as
courtroom evidence, the FBI refused to participate in the torture program.

There are critics who call the torture furor just a matter of policy differences, contending
that any prosecution of former officials would be partisan politics. The Wall Street Journal
editorialized April 22 that talk of Obama’s criminalizing “policy advice” by “patriotic officials
who acted in good faith” represented “partisan anger.” Our response: (1) torture is not a policy
but a felony; (2) U.S. laws require the prosecution of felonies and are silent about the felons’
politics; (3) under the Constitution, the president must take care that the laws be faithfully
executed.

“The United States is a nation of laws,” Obama said on April 16, while letting off the
hook those torturers who relied “in good faith” on official legal advice. As to whether higher ups
will be prosecuted, conflicting messages have come from the White House. Obama wants to look
ahead, not back. But to ignore grave crimes of the past is to encourage their repetition in the
future. Anyway, a refusal to punish torturers is itself a violation of the Convention Against
Torture. The Convention also bars the excuse of Nazi war criminals at Nuremberg that they
were “just following orders” as justification for their crimes.

The administration can put to rest the claim of partisanship while fulfilling the
president’s constitutional mandate — and the Justice Department’s mission — to execute the
laws: Let the attorney general appoint a qualified, conscientious, independent counsel to follow
and act on the evidence wherever it leads.

Mr. Lovinger and Ms. Hassberg,
of San Francisco, are officers of the War and Law League,
warandlaw.org. The former is also a journalist and author.

(Done on April 28, 2009, based on a letter sent to Attorney General Holder on April
24.)